AGREEMENT FOR PURCHASE AND SALE
DATE: MARCH 12, 1998
NAME OF BUYER: EQUITY ONE (GAMMA) INC., AND/OR PERMITTED ASSIGNS
ADDRESS OF BUYER: 777 17TH STREET; PENTHOUSE
CITY: MIAMI BEACH STATE: FLORIDA ZIP: 33139
TELEPHONE: 305-672-1234 FACSIMILE: 305-672-6606
NAME OF SELLER: SUNRISE LIMITED PARTNERSHIP
A MARYLAND LIMITED PARTNERSHIP
C/O MR. IVAN STERN
ADDRESS OF SELLER: THE EXECUTIVE CENTRE AT HOOKS LANE
2 RESERVOIR CIRCLE, SUITE 104
CITY: BALTIMORE State: MARYLAND ZIP: 21208
1. DESCRIPTION OF PROPERTY: Seller ("Seller") agrees to sell and the
above named Buyer ("Buyer") agrees to purchase, under the terms and conditions
set forth in this Agreement, all right, title and interest of the Seller in and
to the following:
A. The parcel of real property, known as SUMMERLIN SQUARE,
located in Fort Myers Beach, Lee County, Florida, consisting of an approximately
110,000 square foot shopping center on approximately 23 acres including Phase II
development of approximately 9.5 and a 1 one acre pad site located on San Carlos
Blvd, and more fully described below, and any improvements situated on such
parcel, together with any and all easements, covenants and other rights
appurtenant to such parcels and owned by Seller, (hereinafter the "Real
Property"):
See Exhibit A attached hereto
B. Intangible Property (collectively "Intangible Property")
consisting of (i) any and all Leases and Contracts in effect on the Closing
Date, (ii) any and all refundable security deposits and other deposits and
interest thereon, if required by law (iii) any and all transferable licenses,
permits, licenses, certificates of occupancy, and other approval in effect at
the Closing Date and necessary for the current use and operation of the real
property or the personal property, (iv) any and all transferable warranties,
architectural or engineering plans and specifications and tests and studies,
development rights that exist as of the Closing Date and relate to the Real or
Personal Property.
C. All furniture, furnishings, fixtures, equipment and other
tangible personal property that is affixed to and/or located at the Real
Property which is owned by Seller on the Closing Date and used in connection
with the management, operation or repair of the Real Property excluding all
tangible personal property owned by tenants of the Real Property (collectively
"Personal Property").
D. Real Property, Personal Property and Intangible Property
may sometimes be herein collectively referred to as the "Property".
2. PURCHASE PRICE: The total purchase price of the Property is $
9,850,000.00 (U.S.) payable as follows:
A. Initial deposit to be paid within 2 days
after Effective Date to
Alan J. Marcus, Esquire
Trust Account $ 500,000.00
B. Total Deposit: $ 500,000.00
C. Wire transfer of funds
required at closing: $ 9,350,000.00*
TOTAL PURCHASE PRICE $ 9,850,000.00
*The Wire transfer of Funds required at closing may be adjusted if
Buyer elects to assume the first mortgage in favor of IDS LIFE INSURANCE COMPANY
(hereinafter "IDS") with an approximate principal balance of $6,700,000.00
(hereinafter the "Mortgage").
The deposits to be paid by Buyer shall be held by ALAN J. MARCUS TRUST
ACCOUNT and shall be refundable to Buyer only as set forth herein and as set
forth in the Escrow Agreement executed in connection herewith.
3. ACCEPTANCE: If this offer is not executed by and delivered to all
parties on or before 2:00 p.m., March 12, 1998, this offer shall be deemed
withdrawn and null and void.
4. FACSIMILE; EFFECTIVE DATE: Facsimile copies of this Agreement,
signed and initialed in counterpart, shall be considered for all purposes,
including delivery, as originals. The Effective Date of this Agreement will be
(a) the date when the last one of Buyer and Seller has
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signed this offer, or (b) if changes in this offer (after signature) have been
made and initialed by the parties, the date when the last one of Buyer or Seller
has initialed those changes.
5. INSPECTIONS AND CONDITION OF PROPERTY:
A. Buyer shall have until 6:00 p.m. April 11, 1998 to
complete its due diligence inspection of the Real Property (the "Inspection
Period"). To assist Buyer with this inspection, Seller shall deliver to Buyer
copies of all available leases, contracts, agreements, licenses, permits,
surveys, a Phase 1 Environmental Report, roof reports, building inspection
reports and other reports in Seller's possession concerning the condition of the
Property, as well as utility bills, year to date income and expense statements,
rent rolls, sales reports for the anchor tenants, for the current year and past
three years; any other sales reports from any tenant required to report for the
current year and past three years, etc. concerning the Real and Personal
Property. Seller shall certify, to its knowledge, the accuracy of income and
expenses reports and all other financial statements including 1996 statements of
operation and 1997 year to date statements to Buyer's auditors. In addition,
Seller shall supply all information concerning the Mortgage. During the
Inspection Period, Buyer may conduct such inspections, at Buyer's sole expense,
as Buyer may deem necessary to ascertain the physical condition of the Real
Property. In the event the Real or Personal Property is not acceptable to Buyer
for any reason, Buyer shall provide written notice of same to Seller, at
Seller's address, prior to the expiration of the Inspection Period. In such
event, this Agreement shall be terminated and of no further force and effect and
Buyer and Seller shall be released of all obligations hereunder and Buyer shall
be refunded all deposits without further notice. Failure of Buyer to deliver
notice to Seller as required herein shall constitute waiver of Buyer's right to
give such notice and shall be deemed acceptance of the Real and Personal
Property by Buyer. Buyer shall (i) complete its inspection Period; (ii) not
disturb or interfere with the operation, management or use of the Project by
Seller, Seller's agents, any tenant of the Project or by any such tenant's
customers, invitee or guests; and (iii) not damage or affect the physical
structure of the Property. Buyer shall be responsible for any and all losses,
damages, charges and other costs associated with such inspections and studies,
and Buyer covenants and agrees to return the Property to the same condition as
existed prior to such inspections and studies. Buyer agrees not to allow any
liens to arise against the Property as a result of such inspections and studies
and agrees to indemnify, defend and hold Seller harmless from and against any
and all claims, charges, actions, costs, suits, damages, injuries, or other
liabilities which arise, either directly or indirectly, from Buyer's or its
agent's entry onto the Property prior to Closing, which obligation expressly
shall survive Closing or earlier termination of this Agreement.
B. Buyer acknowledges that Buyer is purchasing the Property in
"AS IS, WHERE IS" Condition and Buyer further acknowledges that Seller has made
no warranties or representations, express or implied, in respect to the real and
personal property except as set forth herein and further, Buyer has been given
the opportunity and has made an independent investigation of the Property. Buyer
further acknowledges and agrees that Buyer shall be responsible for all due
diligence and analysis with respect to all documents and information provided by
Seller to Buyer,
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and that any reliance thereon (unless said document and/or information expressly
has been certified to herein by Seller) shall be at sole risk of the Buyer.
6. CLOSING:
A. The closing for delivery of the deed and payment of the
balance of the purchase price shall take place at Buyer's attorney's office at a
mutually agreeable time on June 10, 1998, unless extended by other provisions
hereof.
B. Possession of the Property shall be transferred by Seller
to Buyer simultaneously with the closing of title.
7. FINANCING:
Should Buyer elect to proceed to purchase the Property, then
prior to completion of the Inspection Period, Buyer shall elect to either (i)
purchase the Property for all cash; or (ii) with due diligence and in good
faith, apply for assumption (hereinafter the "Assumption") of the existing first
mortgage in favor of IDS (hereinafter the "Lender") having an approximate
principal balance of $6,700,000.00, upon the terms and conditions of such
mortgage loan (hereinafter the "Mortgage Loan"). Buyer's obligation to complete
the purchase and sale of the Property is not subject to Buyer's assumption of
the Mortgage Loan. However, if Buyer has elected to apply for assumption of the
Mortgage Loan, Seller agrees to cooperate in the assumption process and provided
Buyer is acting with due diligence, Buyer may extend the Closing Date provided
same is necessary to complete the assumption process, but not beyond May 30,
1998. Seller may extend the Closing Date, if necessary, to satisfy the
notice and payment date requirements of the Lender, but not beyond May 30,
1998. In the event Buyer is not approved for the assumption or elects not to
assume the Mortgage Loan, Buyer shall be obligated to close "all cash."
Both Buyer and Seller agree that each will cooperate with the Lender
and Lender's counsel to obtain an Assumption Agreement for which documentary
stamp taxes will not be required. Buyer agrees that Buyer will indemnify and
hold Seller harmless in the event any claims are made against Seller for the
payment of such documentary stamps. This indemnification shall survive Closing.
8. SELLER'S REPRESENTATIONS AND WARRANTIES:
Seller represents and warrants to Buyer that as of the
Effective Date:
(a) the person executing this Agreement on behalf of Seller is
duly and expressly authorized to do so;
(b) that Seller has full right and authority to enter into
this Agreement;
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(c) that this Agreement constitutes a valid and legally
binding obligation of Seller, enforceable against Seller in accordance with its
terms;
(d) that the conveyance contemplated herein does not and will
not violate any of the Seller's Corporate Agreements or restrictions;
(e) that Seller is a Maryland Limited Partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction and is qualified to do business in the State of Florida;
(f) that to Seller's knowledge the Property is in compliance
with building and zoning laws of applicable governmental agencies and is not
currently in violation of any material code requirements;
(g) the Seller has not received any notices from any
governmental agency that it is in violation of the Americans with Disabilities
Act; and
(h) Seller represents and warrants that it has not received
written notice of any material condition that adversely affects the Real
Property.
9. BUYER'S REPRESENTATIONS AND WARRANTIES: Buyer represents and
warrants to Seller that the following are true, accurate and complete as of the
Effective Date:
(a) Buyer is duly organized Florida Corporation, validly
existing and in good standing, and authorized to do business within the State of
Florida.
(b) Each of the persons executing this Agreement on behalf of
Buyer is duly authorized to do so. Buyer has full right and authority to enter
into this Agreement and to contemplate the transaction contemplated herein. This
Agreement constitutes a valid and legally binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
(c) There are no actions, suits, claims or other matters
pending, or, to the Buyer's best knowledge and belief, contemplated or
threatened against Buyer that could affect Buyer's ability to perform its
obligations under this Agreement.
(d) Buyer has sufficient funds and worthy credit available to
consummate the Closing of the transaction described in this Agreement.
10. LIMITATIONS ON FUTURE LEASES AND RENTALS: Subsequent to the
Effective Date, Seller shall not, without Buyer's prior written consent, enter
into any leases or contracts except for (i) contracts to be completed or that
are to terminate at or before closing, or (ii)
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service contracts that are terminable on not less than 30 days notice. Buyer
shall have five (5) days to approve any proposed leases, which approval shall
not be unreasonably withheld. In the event Buyer does not provide written
consent to the proposed lease or contract, Buyer's silence shall be deemed a
consent to said lease or contract.
11. CONDITION OF PROPERTY AT CLOSING: Seller shall be obligated to
maintain the Property in substantially the same condition as of the Effective
Date, reasonable wear and tear excepted. Seller shall be obligated to repair and
correct any adverse changes in the condition of the Property occurring
subsequent to the Effective Date hereof.
12. CONDITIONS PRECEDENT TO CLOSING
A. CONDITIONS PRECEDENT FOR BUYER: The obligation of Buyer to
purchase the Property from Seller under this Agreement is, subject to the
satisfaction, at Closing, of each of the following:
(i) The representations and warranties made by Seller in this
Agreement shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of such date.
(ii) Seller shall have performed in al material respects all
covenants and obligations required by this Agreement to be performed by Seller
on or before Closing.
(iii) Title to the property shall conform with the
requirements of Paragraph 17 herein and Buyer shall have received a written
Commitment for Title Insurance, as described in Paragraph 17, indicating that an
owner's title insurance policy in accordance with the provisions of Paragraph 17
will be issued after the date of Closing and compliance with any requirements
contained therein. At Closing, said Commitment shall be "marked up" indicating
satisfaction of all requirements set forth in said Commitment and deleting all
standard exceptions; i.e. to wit, GAP, mechanics and or other liens,
encroachments, and easements, etc.; chapter 159 liens and assessments; liens or
assessments not shown in the public records; and or any exception thereby
seeking to impose any lien, assessment, and or other encumbrance against the
Property. Nothing contained herein shall limit, modify, and/or otherwise effect
Seller's obligation to deliver to Buyer, in any event, and at Seller's expense,
upon Closing, good, marketable and insurable title to the Property, subject to
the Permitted Exceptions as set forth in Paragraph 17.
(iv) Seller shall furnish a written estoppel letter from each
tenant to the extent required in Paragraph 18 of this Agreement.
(v) All Leases for all of the tenants which occupy the
Property shall be in good standing and to Seller's knowledge, effective and that
each tenant of the Property shall be operating at the Property and in full
compliance with its lease obligations. In the event that prior to Closing,
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any of the tenants of the Property have vacated their premises or are in default
or breach of their lease obligations or have provide notice of any kind to that
effect, Buyer may within not more than five (5) days after written notice
thereof, by written notice to Seller, terminate this Agreement, whereby Buyer
shall be reimbursed its deposit and Buyer shall be released of all obligations
hereunder, except those which survive Closing or termination hereunder.
B. CONDITIONS PRECEDENT FOR SELLER: The obligation of Seller
to sell the Property to Buyer under this Agreement is, subject to the
satisfaction, at closing, of each of the following:
(i) The representations and warranties made by Buyer in this
Agreement shall be true, accurate and complete in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties were made on and as of such date. Notwithstanding the above, if
any representation or warranty set forth herein shall not be correct in any
material respect at or before Closing and Seller notifies Buyer thereof in
writing, Buyer may terminate this agreement and receive a return of its deposit
as its sole remedy on account of such circumstance, except where the same is
incorrect in any material respect due to the intentional misrepresentation of
the Seller, in which event Buyer shall have the additional remedy of the right
to reimbursement of its third party out-of pocket expenses incurred in
connection with the transaction. Furthermore, if prior to Closing, Buyer
discovers a breach of any representation or warranty made by Seller herein and
not withstanding such discovery, Buyer proceeds to Closing, Buyer shall be
deemed to have waived the breach of such matter of which it had actual knowledge
prior to Closing and Seller shall have no liability on account thereof.
(ii) Buyer shall have performed all covenants and obligations
required by this Agreement to be performed by Buyer on or before Closing.
13. CLOSING; DELIVERIES AT CLOSING: The closing of the transaction
contemplated in this Agreement ("Closing") shall take place on the date set
forth in Paragraph 6 of this Agreement.
A. At the time of Closing, Seller shall deliver to Buyer
the following items:
1. Warranty Deed.
2. Bill of Sale with respect to any Personal
Property included in the sale;
3. Mechanics' Lien Affidavit.
4. Title Affidavit.
5. Assignment of Leases, Rents and Security
Deposits;
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6. Assignment of Contracts, if any;
7. Title evidence as set forth in Paragraph 17.
8. If Buyer has elected to assume the Mortgage
Loan, an Assignment of Mortgage or similar
documentation evidencing Assumption of the
Mortgage Loan;
9. Appropriate authorizations of the Partners
and if any Partners are Corporations, a
corporate resolution and an incumbency
certificate to evidence such Partner's
capacity and authority to consummate
Closing, a certified copy of Articles of
Incorporation and bylaws, including all
amendments thereto; and a current
Certificate of Good Standing;
10. Such other documents as may be reasonably
required in order to complete the purchase
and sale.
B. At the time of closing, Buyer shall deliver or cause to be
delivered to Seller the following items:
1. The earnest Deposit to be credited against
Purchase Price;
2. A corporate resolution and an incumbency
certificate to evidence Buyer's capacity and
authority to consummate Closing, a certified
copy of Buyer's Article of Incorporation and
bylaws, including all amendments thereto;
and if Buyer is a corporation, a current
Certificate of Good Standing in state in
which Buyer is incorporated;
3. Acceptance of Assignment of Contracts;
4. Acceptance of the Assignment of Leases,
Rents and Security Deposits;
5. If Buyer has elected to assume the Mortgage
Loan, Acceptance of the Assignment of
Mortgage Loan or similar documentation
evidencing Assumption of the Mortgage Loan;
and
6. The balance of the Purchase Price and such
other funds necessary to pay all Closing and
other costs and adjustments to be paid by
Buyer under this Agreement (to be delivered
by wire transfer).
C. Each party agrees to execute and deliver at Closing a
settlement statement setting forth the charges, adjustments and credits to each
party and to execute and deliver such other
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documents and take such actions as either party or the Escrow Agent might
reasonably request to consummate the transaction herein contemplated.
D. At Closing, the Escrow Agent shall (a) disburse all funds,
then (b) record, among the appropriate Public Records, all documents to be
recorded, and then (c) deliver all original documents and copies thereof, to the
appropriate parties.
14. RISK OF LOSS: Risk of loss prior to closing shall be borne by
Seller.
A. If between the time of execution of this Agreement and the
time of closing, the Property is damaged by fire or other casualty the following
shall apply, at Buyer's option:
1. Upon receipt of applicable insurance proceeds,
Seller shall have the obligation to repair or replace the damaged improvements
built upon the Real Property. If Buyer requires, Seller shall make such repairs
or replacements and this Agreement shall continue in full force and effect and
the Seller shall be entitled to extend the closing for a reasonable additional
period of time so as to enable Seller to complete such repairs or replacements;
or
2. Buyer may notify Seller that Buyer would rather
that Seller not repair or replace any such loss or damage and Seller shall
assign all right to and in any and all proceeds received from insurance or in
satisfaction of any claims or actions in connection with such loss or damage and
upon such assignment Buyer shall close without any purchase price reduction.
3. In the event the cost of repairs is in excess of
$100,000.00, either Seller or Buyer shall have the right to cancel this
Agreement in which event, this Agreement shall be deemed canceled and of no
further force or effect. Buyer shall be refunded its deposit monies, without
further notice, and the parties shall be released and discharged of all claims
and obligations hereunder.
B. CONDEMNATION
In the event that all or any substantial portion of the Real
Property is condemned or taken by eminent domain prior to Closing, Buyer may, at
its option, either: (i) terminate this Agreement by written notice thereof to
Seller within ten (10) days after Seller notifies Buyer of the condemnation and
receive an immediate refund of the Deposit, and all interest accrued thereon or
(ii) proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall deliver to Buyer at the Closing any proceeds
actually received by Seller attributable to the Real Property from such
condemnation or eminent domain proceeding, net of any costs associated with such
condemnation or eminent domain proceeding, or an assignment of Seller's rights
against the condemning authority, and there shall be no reduction in the
purchase price. In the event Buyer fails to timely deliver written notice of
termination as described in (i) above, Buyer shall be deemed to have elected to
proceed in accordance with (ii) above.
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15. EXPENSES OF CLOSING:
A. Seller shall pay the following costs incurred in this
sale:
(i) Seller's attorneys fees and costs;
(ii) The cost of recording any releases or
corrective title instruments;
(iii) All documentary stamp taxes and surtax on
the deed that will be due as a result of the
completion of the sale;
(iv) Those costs of delivery of the Evidence of
Title, as required in Paragraph 17B, herein;
and
(v) Any assumption fees or prepayment fees equal
to one percent (1%) of the Mortgage Loan
Balance.
B. Buyer shall pay the following costs incurred in this
sale:
(i) Buyer's attorney's fees and costs;
(ii) the costs of recording the deed of
conveyance;
(iii) the cost of Title Insurance Premiums, as
required in Paragraph 17B, herein;
(iv) the cost of a survey certified to Buyer;
(v) any additional prepayment penalties incurred
with payoff of the Mortgages Loan; provided
that Buyer's share shall not exceed two
(2.0%) percent of the Mortgage Loan Balance;
(vi) If Buyer has elected to assume the Mortgage
Loan, all costs incurred in the Assumption
of the Mortgage Loan, including all
recording and title costs and Lender's fees,
other than those assumed by Seller in
Paragraph 15.A.(v); and
(vii) Buyer's attorneys fees.
16. PRORATIONS AND CREDITS:
A. PRORATIONS: Current real estate taxes, based on the latest
tax bill then available; personal property taxes and assessments, collected
rents, maintenance fees, solid waste
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disposal obligations and other contract obligations, and other similar
customarily proratable items shall be prorated as of the Closing Date with Buyer
being responsible for and assuming payment for all amounts due for all periods
after Closing and being credited with those due or collected for those periods
prior to Closing on the day of Closing. In the event either party collect rent
of which a portion belongs to the other party, then the collecting party shall
prorate such rent and deliver the other party's share within 10 days of receipt.
The provisions of the Paragraph are intended to survive Closing. Seller shall
have the right to collect any past due rents and Buyer shall cooperate with
Seller in the collection process for such rents. All amounts payable by tenants
at the Property as periodic estimates of the costs of the utilities, taxes,
insurance, maintenance, repairs and other operating expenses relating to the
months or other applicable periods up through the month or other applicable
period within which the Closing occurs shall be adjusted and prorated as above.
Seller shall not receive a credit for any estimates and expenses which are due
and payable prior to Closing but not yet billed or paid, or delinquent at the
time of Closing, but Buyer shall pay such amounts to Seller immediately upon
receipt of any amounts which are billed, paid, or are delinquent with respect to
the period after Closing. Buyer agrees to take all reasonable efforts to bill
and collect any such sums due for periods prior to Closing which are not
billable by the Seller prior to Closing and Seller hereby reserves all rights to
take legal action against tenants at the Property for recovery of all such items
applicable to the period before Closing to the extent not paid after Closing.
B. CREDITS: Buyer shall be credited with the amount of any
prepaid rents paid to Seller by tenants of the Property for periods subsequent
to the Closing date and with the amount of any deposits for tenants of the
Property, including rental, cleaning, utility, key, damage and other deposits.
17. TITLE REQUIREMENTS:
A. Title to the property shall be insurable and shall be
conveyed from Seller to Buyer free and clear of all encumbrances except the
Permitted Exceptions which are set forth as Exhibit "C" and to the extent not
set forth on Exhibit "C":
1. Covenants, conditions, restrictions, limitations,
reservations, dedications, agreements, and easements of record (including but
not limited to, water, sewer, gas, electric and other utility agreements) at the
time of closing, provided that they do not contain provisions for reversion or
forfeiture of title in the event of violation and do not substantially impair
the use of the property for its customary purposes.
2. General and special taxes and assessments for current and
subsequent years.
3. Regulatory laws and ordinances of all appropriate
governmental authorities including but not limited to zoning restrictions.
4. Rights of parties in possession.
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B. Within 10 days of the Effective Date, Buyer shall obtain,
at Seller's expense not to exceed $500.00, evidence of title consisting of a
Commitment to issue Title Insurance from Commonwealth Land Title Insurance Co.
along with copies of all title exceptions and a certified survey of the Property
for Buyer to review. If any exceptions render the Property unacceptable for
Buyer's use, Buyer shall advise Seller of same prior to the end of the
Inspection Period and the provisions of Section 17.E. shall apply.
All exceptions for which the Buyer does not object shall be considered
to be Permitted Exceptions and shall be deemed acceptable by Buyer.
C. Except for the Permitted Exceptions, Seller shall be
obligated to deliver the property free and clear of any and all encroachments,
overlaps, boundary line disputes and other matters disclosed by a certified
survey other than those set forth in the survey referenced in Section 17.B. of
this Agreement. In the event the survey shows any such encroachment or that the
improvements presumed to be located on the real property in fact encroach on
setback lines, easements, or lands of others, or violate any restrictions of
record, covenant or applicable government regulation, same shall be treated as a
title defect which renders title unmarketable.
D. As a further requirement of title, at closing (i) the Title
Insurance Commitment shall be marked to indicate satisfaction of all
requirements set forth necessary in order to deliver insurable and marketable
title and (ii) the standard printed exceptions contained in American Land Title
Association Standard Form B Owners' Title Insurance Policy customarily issued
shall be deleted; i.e. to wit, parties in possession, GAP, mechanics and or
other liens, encroachments, and easements, etc.; chapter 159 liens and
assessments; liens or assessments not shown in the public records; and or any
exception thereby seeking to impose any lien, assessment, and or other
encumbrance against the Property. Nothing contained herein, shall limit, modify,
and/or otherwise effect Seller's obligation to deliver to Buyer, in any event,
and at Seller's expense, upon Closing, good, marketable and insurable title to
the Property, but subject to the Permitted Exceptions. In the event any
exception referenced herein cannot be deleted, same shall be treated as a title
defect.
E. If the title is not delivered as required hereunder at the
time of Closing, Seller shall have 90 days following the date for Closing, at
its sole option, within which to remedy such defect and shall use diligent
effort, if it so elects, to cure such defect within 90 days of said notice. If
Seller elects not to cure such defect within said 90 day period, Buyer shall
have the option of either accepting the title as it is or demand a refund of the
Buyer's deposit. Buyer may also allow such additional time as may be deemed
necessary, in the discretion of the Buyer, for Seller to cure such defect. Upon
any such refund, this Agreement shall thereupon be terminated and both parties
shall be relieved of further liabilities hereunder. Notwithstanding the
foregoing, Seller shall be required to have released any monetary liens on the
Property not assumed, as required hereunder, by Buyer.
18. TENANT ESTOPPEL LETTERS: Seller shall request in writing from each
tenant at the Property execution and delivery of an estoppel certificate
indicating the amount of rent paid, the date last paid, the amount of security
deposits, any prepaid rents, etc. (hereinafter the
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"Estoppel Certificate") substantially in the form attached hereto as Exhibit B,
and shall take all reasonable efforts to obtain the same from all tenants.
Seller shall deliver to Buyer copies of the Estoppel Certificates obtained by
Seller prior to Closing. In the event that by Closing, Seller is unable to
obtain Estoppel Certificates from all tenants which occupy 1,750 square feet of
space or more within the Property, the four tenants occupying the out parcels
including the Driving Range, the tenants known as Stamp and Stuff and Ron
Gillenwater, DDS and 50% of all remaining tenants of the Property; Buyer shall
have the right, as its sole and absolute remedy on account thereof, to terminate
this Agreement by giving written notice to Seller, whereupon the Deposit shall
be returned to Buyer, and the parties shall have no further liability hereunder
(except as to those matters which by the terms hereof expressly shall survive
termination). Buyer's obligation to close shall be subject to (1) receipt of
such Estoppel Letters; and (2) said Estoppel Letters being consistent with the
terms and conditions of the Leases of the tenants.
19. ASSIGNMENT: This Agreement may be assigned to a controlled
affiliate of the Buyer without the consent of Seller, provided assignee accepts
assignment thereof and assumes the obligations contained therein. Buyer may
elect to change the name of the Corporate Purchaser and upon such change, shall
notify Seller, such change to be made within 10 days after the expiration of the
Inspection Period.
20. DEFAULT: Should Buyer fail to purchase on the date on which title
is to close in accordance with this Agreement, or fail to perform any of Buyer's
other obligations under this Agreement and such default is not cured within 10
days after written notice to Buyer, Seller may, at Seller's option, cancel this
Agreement by written notice to Buyer. In such event, Buyer's deposits and all
other sums paid to Seller (including any interest earned thereon) shall be
retained by Seller as liquidated and agreed damages for Buyer's default, and
this Agreement shall terminate. Seller has removed the Property from the market
and has incurred indirect expenses relative to sales, advertising and the like,
and Buyer recognizes that no other method could determine the precise damage
resulting and retention of all sums then paid as liquidated and agreed damages
shall be Seller's sole remedy in the event of Buyer's default. If this Agreement
is so canceled, Seller may sell the Property to any third party as though this
Agreement had never been made (without any obligation to account to Buyer for
any part of the proceeds of such sale). Buyer agrees not to file any action
against Seller seeking the return of any portion of said deposits or seek any
reduction in the amount of the liquidated and agreed upon damages if this
Agreement is terminated for Buyer's default. Should Seller default under this
Agreement or fails to perform any of Seller's other obligations under this
Agreement and such default is not cured within 10 days after written notice to
Seller, Buyer's sole and exclusive remedy shall be to (i) obtain a refund of all
deposits made, whereupon this Agreement shall terminate and neither party shall
have any liability to the other, or (ii) bring an action for specific
performance, without waiving Buyer's right to damages incurred as a result of
Seller's fraud or wrongful refusal to convey the Property.
21. ESCROW AGENT: The Escrow Agent shall hold the deposit funds and
perform
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such duties as set forth in the Escrow Agreement attached hereto, consistent
with the provisions of this Agreement.
22. MISCELLANEOUS PROVISIONS:
A. All written notices and demands provided under this
Agreement shall be hand delivered or sent via certified or registered mail,
return receipt requested, or by Federal Express or other air carrier service.
All notices and demands shall be deemed properly addressed if addressed as
follows and if mailed, shall be deemed given upon being deposited in the United
States mail, postage prepaid:
To Seller: To Buyer:
Ronald P. Fish, Esquire Alan J. Marcus, Esquire
Ballard, Spahr 20803 Biscayne Blvd.; Suite 301
300 East Lombard Street Aventura, FL 33180
Baltimore, Maryland 21202 Tel: (305) 937-1800
Tel: (410) 528-5617 Fax: (305) 937-1857
fax: (410) 528-5540
B. This Agreement supersedes and any all prior understandings
and agreements between Seller, its agents and representatives and Buyer. It is
mutually understood and agreed that this Agreement represents the entire
understanding between Buyer and Seller. No representations or inducements made
prior to the signing of this Agreement, which are not expressly included in this
Agreement or imposed by law, shall be of any force or effect.
C. Neither this Agreement nor a memorandum thereof shall be
recorded in the office of the Clerk in any Circuit Court of the State of
Florida, or in any other Public Records of the State of Florida. Any recording
of same by Buyer shall be considered a breach of this Agreement.
D. The acceptance of the deed by Buyer at the closing of this
transaction shall be acknowledgment by Buyer of the full performance by Seller
of all of its agreements and responsibilities hereunder, and no performance of
any agreement, obligation, responsibility or representation of Seller shall
survive the closing of this transaction, except those specifically provided for
by statute and those specifically stated in this Agreement to survive the
closing.
E. Time shall be of the essence with regard to performance
pursuant to this Agreement.
F. Any disputes arising in connection with this Agreement
shall be settled according to Florida law and venue for any action in connection
with this Agreement shall be in Lee County, Florida.
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G. No modification of this Agreement shall be valid unless in
writing and signed by both parties.
H. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument which may be sufficiently evidenced
by one such counterpart.
I. Should any part, clause, provision or condition of this
Agreement be held to be void, invalid or inoperative, the parties agree that
such invalidity shall not affect any other part, clause, provision or condition
thereof, and that the remainder of this Agreement shall be effective as though
such void part, clause, provision, or condition had not been contained herein.
J. In the event of any litigation arising from this Agreement
the prevailing party shall be entitled to recover attorneys fees and costs
incurred therewith.
23. BROKER: Seller acknowledges that Seller is and shall be responsible
to pay a commission ("Commission") if Closing occurs hereunder to Grubb and
Ellis (Broker) who in turn will satisfy any Commission due E.B. Marketing (E.B.)
Said fee is payable by Seller at time of closing. Seller agrees to indemnify
Buyer and hold Buyer harmless for any and all claims concerning Commissions that
may arise in favor of any person claiming by, through or under Seller other than
Broker and E.B. Buyer agrees to indemnify Seller and hold Seller harmless for
any and all claims concerning Commissions that may arise in favor of any person
claiming by, through or under Buyer.
24. OPTION OF MOBIL OIL: The Obligation of Seller to complete Closing
is expressly subject to the option of Mobil Oil Corporation to Purchase the
Property as set forth in the attached extract and the Memorandum of Lease
attached hereto as Exhibit " " hereto. Should Mobil exercise its option, this
Agreement shall be null and void.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.
SELLER:
SUNRISE LIMITED PARTNERSHIP
A Maryland Limited Partnership
CHESAPEAKE BAY CAPITAL CORPORATION, G.P.
General Partner
By: ___________________________ Executed by Seller on March 12, 1998
IVAN STERN, President
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BUYER:
EQUITY ONE (GAMMA) INC.
By: ___________________________ Executed by Seller on March 12, 1998.
DORON VALERO, Vice President
ESCROW AGENT:
_______________________________ Executed by Escrow Agent on March 12, 1998.
ALAN J. MARCUS
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